Appeal from (1) an order of the Civil Court of the City of New York, Richmond County (Marina Mundy, J.), dated November 20, 2006, (2) a final judgment of said court (Marina Mundy, J.), entered December 12, 2006, (3) the denial of an order to show cause by said court (Philip S. Straniere, J.), dated January 25, 2007, and (4) an order of said court (Kim Dollard, J.), dated April 5, 2007. The order dated November 20, 2006, upon, in effect, granting reargument of a prior motion to dismiss, to hold landlord's managing agent in contempt and to impose sanctions on landlord and/or its attorneys, adhered to the prior decision denying such relief, and denied tenant's motion to have the judge recuse herself. The final judgment entered December 12, 2006, upon tenant's failure to appear at trial, awarded landlord possession and arrears. The "order"

dated January 25, 2007 denied tenant's application for an order to show cause. The order dated April 5, 2007 denied tenant's motion to vacate the final judgment and to be restored to possession.

Order dated April 5, 2007 modified by providing that the branch of tenant's motion seeking to vacate the final judgment is granted and the matter is remanded to the court below for trial, and by further providing that the denial of the branch of tenant's motion seeking to be restored to possession is without prejudice to renewal following trial and joinder of the new tenant in possession, if any; as so modified, affirmed without costs.

Appeal from final judgment entered December 12, 2006 and from order dated January 25, 2007 dismissed.

Order dated November 20, 2006 affirmed without costs.

The appeal from the "order" dated January 25, 2007 is dismissed because no appeal lies from the denial of an application for an order to show cause (see CCA 1702 [a] [2]; CPLR 2211; [*2]Gache v Town/Village of Harrison, 251 AD2d 624 [1998]). The appeal from the final judgment entered December 12, 2006 is dismissed as academic.

With respect to the November 20, 2006 order, a review of the record in this nonpayment proceeding establishes that tenant failed to set forth any basis sufficient to warrant granting the relief requested in the branch of his motion, in effect, for reargument of his prior motion to dismiss, to sanction landlord and/or its attorneys, and to hold landlord's managing agent in contempt, or in the branch of his motion seeking to have the judge recuse herself. With respect to the order dated April 5, 2007, tenant's motion to vacate the default final judgment sufficiently set forth an excusable default and a meritorious defense. We note that tenant attempted to appear in court at what he reasonably believed was the time ordered by the court, and that, upon his motion to vacate the default final judgment, he submitted proof indicating that there were 42 open violations in his apartment. Accordingly, the default final judgment is vacated and the matter remanded for trial. The branch of tenant's motion seeking restoration to possession is denied without prejudice to renewal following trial and joinder of the new tenant in possession, if any.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 24, 2008